Monday, June 18, 2012

Theft, the Computer and the Weight of the Evidence

When I hear someone refer to “computer theft,” I usually
think they’re referring to someone who used a computer to obtain property or
services. Georgia Code § 16-9-93(a), for
example, defines “computer theft” as (i) using a computer or computer network
(ii) knowing the use is unauthorized and (iii) intending to take another’s
property or use fraud to obtain another’s property. Here, the computer is merely an instrument
that is used to commit fraud. Most state
statutes that deal with computers and theft tend to take this approach.

Rhode Island, though, has a statute that makes it a crime
to, among other things, steal a computer or computer software. General Laws of Rhode Island § 11-52-4. The case this post examines deals with this
type of computer theft, though it was not specifically prosecuted as “computer
theft.”

Albert P. McLeod was charged with theft of property valued
at more than $500 and less than $5,000, “a fifth degree felony,” in violation of
Ohio Revised Code § 2913.02(A)(1), which makes it a crime “knowingly” and “with
purpose to deprive the owner of property”, to obtain or exert control over . .
. the property”. State
v. McLeod, 2012 WL 1929337 (Ohio Court of Appeals 2012).

The case went to trial and the jury found him guilty; after
the judge sentenced him to 25 days in jail, McLeod appealed. State v. McLeod, supra. On appeal, McLeod argued that the state did
not present sufficient evidence to sustain the conviction and/or that the conviction
was “against the manifest weight of the evidence.” State
v. McLeod, supra.

The only witnesses at the trial were Dean Holtsclaw, manager
of a Wal-Mart, and McLeod. State v. McLeod, supra. He testified that, on January 1, 2007, he saw

[McLeod] select a computer and place it
in a shopping cart. . . . Shortly
thereafter, Holtsclaw saw another man place another computer in a shopping
cart. . . . The other man paid for his computer at the electronics checkout. .
. . [McLeod], however, exited the store without purchasing anything. . . . [He]
then came back into the store and retrieved the computer he had left in the
cart. . . .

Holtsclaw observed [McLeod] the entire time. . . . . [He] went to the
front checkout and purchased one small item. . . . [McLeod] then tried to leave the store through the
grocery exit with the computer. . . . Holtsclaw stated that at no time did [McLeod]
pay for the computer. . . .

[McLeod] presented the greeter with a
receipt for a computer from the electronics checkout from 20 minutes prior. . .
. Holtsclaw then called the police.

State v. McLeod,
supra.

Holtsclaw testified that “only one model” of the computer McLeod
had in his possession “was legitimately sold in Wal–Mart that day”, and it “was
purchased through the electronics checkout.”
State v. McLeod, supra. He also testified as to what the Wal-Mart
video surveillance system had recorded that day:

It showed [McLeod] entered Wal–Mart
with the other man at 1:25 p.m. . . . At 1:28 p.m., [McLeod] selected a computer and placed it in his
cart. . . . At 1:29 p.m., the other man selected a computer. . . . At 1:33
p.m., [McLeod] exited the store. . . .
At 1:37 p.m., the other man paid for his computer. . . .

It was the only computer of that model sold
on that day. . . . [McLeod] was still
outside of the store at this point. . . . At 1:45 p.m., the other man exited
the store with his purchased computer. . . . At 1:50 p.m., [McLeod] re-entered
the store. . . .

At 1:56 p.m., [McLeod] went through a
front checkout with the computer and paid only for one item valued at $5.35. .
. . At 1:57 p.m., [McLeod] attempted to leave the store with the computer.

State v. McLeod,
supra.

The receipt McLeod presented as proof he bought the computer
was dated January 1, 2007, and listed the time of sale as 1:37 p.m. State v. McLeod, supra. As noted above, it came from the register in the electronics department. State v. McLeod, supra. The value of the computer was $598. State v. McLeod, supra. And, on cross-examination, Holtsclaw
“admitted no one saw [McLeod] and the other man exchange any receipts or
paperwork.” State v. McLeod, supra.

McLeod, on the other hand, testified that “on the day in
question” he went to Wal-Mart to

buy a computer for his granddaughter. .
. . He . . . was alone. . . . [McLeod]
testified that he realized he forgot his wallet and went back out to his car to
retrieve it. . . . [He] then went back into the store where he purchased the
computer. . . .

He next went to exit the store when he
realized he forgot to buy something. . . . He . . . went back and bought a hair
trimmer. . . . In the meantime, an employee asked to see his receipt, which he
showed her. . . . He stated that she placed an `X’ on the receipt. . . .

Then as he went to exit the store with
the computer and the hair trimmer, the security guard detained him. . . . [McLeod]
stated that he had the computer with him from the time he purchased it until he
tried to leave the store. . . .

He denied stealing the computer or
working with anyone else to steal the computer. . . .

State v. McLeod,
supra.

McLeod’s first argument was that the evidence was not
sufficient to support the verdict because “the state failed to prove that he
acted `knowingly.’” “A person acts knowingly, regardless of his purpose, when
he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature.” R.C. 2901 .22(B). The Court of Appeals noted
that, under Ohio Revised Code § 2901.22(B), a person acts “knowingly” when “he
is aware that his conduct will probably cause a certain result of will probably
be of a certain nature.”

The Court of Appeals then examined the evidence to
“determine if it was sufficient to convict” McLeod of the crime charged. State
v. McLeod, supra. It found that the
evidence outlined above,

when viewed in a light most favorable
to the prosecution, establishes that [McLeod], with the purpose to deprive
Wal–Mart of the computer, knowingly exerted control over the computer without
Wal–Mart's consent. Thus, [his] conviction is supported by sufficient evidence.

argument, in part, on the fact that
there was no testimony that he physically removed the computer from Wal–Mart
without paying for it. He also relie[d] on the fact that there was no video
evidence that he conspired with the other man in an effort to steal the
computer. And he relie[d] on his own testimony that he paid for the computer
and showed a receipt to prove it.

State v. McLeod,
supra.

The Court of Appeals then outlined the standard for
addressing an against the manifest weight of the evidence issue:

In determining whether a verdict is
against the manifest weight of the evidence, an appellate court must review the
entire record, weigh the evidence and all reasonable inferences and determine
whether, in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. [State
v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (Ohio Supreme Court
1997).]

`Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered
in a trial, to support one side of the issue rather than the other.”’ [State
v. Thompkins, supra (emphasis in
the original.] In making its determination, a reviewing court is not
required to view the evidence in a light most favorable to the prosecution but
may consider and weigh all of the evidence produced at trial.

State v. McLeod,
supra.

The court also noted that “granting a new trial is only
appropriate in extraordinary cases where the evidence weighs heavily against
the conviction” because

determinations of witness credibility,
conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and
demeanor.

State v. McLeod,
supra. In other words, the jury is
the best judge of the evidence.

The Court of Appeals then explained that determining whether
the verdict in this case was against the manifest weight of the evidence, it
had to consider Holtsclaw's testimony and that of McLeod. State v. McLeod, supra. It
noted that

[t]his case turned on whose testimony
the jury found to be more credible. Given their guilty verdict, the jury found
Holtsclaw to be the more credible witness. Holtsclaw's testimony was supported
by the video surveillance photos that showed where appellant and the other man
were and at what times.

His testimony was further bolstered by
the fact that the only model of the particular computer that [McLeod] tried to
leave the store with that was sold at Wal–Mart that day was purchased when [McLeod]
was not in the store and the computer he had selected sat in an unattended
shopping cart.

State v. McLeod,
supra.

The Court of Appeals then found that

[i]n this case, the jury simply did not
believe [McLeod’s] testimony that he paid for the computer. We will not second-guess
the jury's credibility determination. The jury's verdict was not against the
manifest weight of the evidence.